Pursuant to Ind.Appellate Rule 65(D), 

this Memorandum Decision shall not be 

regarded as precedent or cited before 

any court except for the purpose of 

establishing the defense of res judicata, 

collateral estoppel, or the law of the 

case.

ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:

VALERIE K. BOOTS GREGORY F. ZOELLER

Marion County Public Defender Agency Attorney General of Indiana

Indianapolis, Indiana

CYNTHIA L. PLOUGHE

Deputy Attorney General

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

TRAVIS SMITH, )

)

Appellant-Defendant, )

)

vs. ) No. 49A05-1307-CR-316

)

STATE OF INDIANA, )

)

Appellee-Plaintiff. )

APPEAL FROM THE MARION SUPERIOR COURT

The Honorable Grant W. Hawkins, Judge

Cause No. 49G05-1201-FB-5928

February 17, 2014

MEMORANDUM DECISION - NOT FOR PUBLICATION

BROWN, Judge
2

Travis Smith appeals his convictions for failure to stop after an accident resulting 

in serious bodily injury while intoxicated as a class B felony and failure to stop after an

accident resulting in damage to property other than a vehicle as a class B misdemeanor 

and his enhancement for being an habitual offender. Smith raises four issues which we 

revise and restate as:

I. Whether the admission of hearsay evidence constituted fundamental 

error;

II. Whether the prosecutor committed prosecutorial misconduct that 

resulted in fundamental error; 

III. Whether the court’s admonishments that the jury could discuss the 

testimony it had heard for the purpose of making sure that each juror 

heard the same thing constituted fundamental error; and

IV. Whether Smith knowingly, voluntarily, and intelligently waived his 

right to a jury trial on the habitual offender charge.

We affirm in part, reverse in part, and remand. 

FACTS AND PROCEDURAL HISTORY

On the morning of January 26, 2012, Bradley Amiano had just returned from a run 

and was taking out his trash on 13th Street in Indianapolis. A 1992 GMC 1500 pickup 

truck “kind of blew right past” him and was going well over the speed limit. Transcript 

at 68. Amiano was able to see inside the truck. The driver was wearing a brown jacket 

similar to “a big construction type jacket, like a Carhartt type brand.” Id. Seconds after 

Smith saw the individuals in the truck, the truck failed to stop for a stop sign and collided 

with a red Jeep Grand Cherokee that did not have a stop sign and was driven by Raul 

Godinez with Godinez’s one-year-old son as a passenger. The truck “pretty much Tboned” Godinez’s vehicle. Id. at 140. The impact was so great that it caused the vehicles 
3

to spin out of control and end up on top of a porch. Godinez’s son suffered a fractured 

skull as a result of the crash. 

Amiano went inside, grabbed his cell phone, immediately went back outside, and 

called 911. At that time, the person who was sitting in the driver’s seat opened the door, 

“kind of stumbled out,” and started walking or jogging. Id. at 70. Amiano relayed the 

driver’s actions to the 911 operator. 

Indianapolis Metropolitan Police Sergeant Jack Simpson responded to the dispatch 

regarding a hit and run accident with injury and the description of the subject of a “black 

male in a carthardt [sic] jacket and grey pants” running southbound through the houses 

from 13th and Euclid. Id. at 85. Sergeant Simpson went north and approximately three 

blocks from the scene of the collision observed a black male with grey pants and a 

Carhartt jacket which matched the description given by the police dispatch. Sergeant 

Simpson told the person, later identified as Smith, to stop and observed that Smith had 

blood dripping down all over his face. Smith had a phone to his ear, but Sergeant 

Simpson could not tell if he was really talking on the phone. Sergeant Simpson called for 

an ambulance and asked Smith if he had been in an accident, to which Smith responded

that he was not driving. 

Meanwhile, police discovered Tywan Baker, who had broken his femur, and was 

trapped in the passenger seat of the truck, and Cody Smith (“Cody”), Smith’s brother, in 

the center seat and “pretty close to where [Baker] was sitting.” Id. at 276. Cody was 

“wedged in there pretty good,” and he had to use both of his hands to pull himself from 

the middle seat to exit out of the driver’s side door. Id. 
4

Indianapolis Metropolitan Police Officer Scott Emminger arrived at the scene and 

observed that Smith had an odor of an alcoholic beverage about his person, he had glassy 

and bloodshot eyes, his speech was discernibly slurred, and he was “kind of staggering.” 

Id. at 108. When Officer Emminger asked him to produce an identification card or a 

driver’s license, Smith attempted to retrieve his wallet from his pocket but failed. Officer 

Emminger asked to retrieve the wallet, and Smith allowed him to do so. An ambulance 

transported Smith to Wishard Hospital where he was treated and his blood was drawn. A 

forensic scientist later determined that the “Alcohol Concentration Equivalent in [Smith]

was .19 gram/100 milliliters of his blood (0.19% w/v)(190 mg/DL).” State’s Exhibit 5.

On January 30, 2012, the State charged Smith with Count I, failure to stop after an 

accident resulting in serious bodily injury while intoxicated as a class B felony; Count II, 

operating a motor vehicle while intoxicated causing serious bodily injury as a class D

felony; Count III, operating a motor vehicle with a BAC of .08 or more causing serious 

bodily injury as a class D felony; and Count IV, failure to stop after an accident resulting 

in damage to property other than a vehicle as a class B misdemeanor. The State also 

alleged that Counts II and III were enhanced to class C felonies based upon Smith’s prior 

convictions. On February 28, 2012, the State filed a notice of intent to file an habitual 

offender enhancement. On May 30, 2012, the State alleged that Smith was an habitual 

offender. On June 3, 2013, the State filed an amended information related to the habitual 

offender allegation. 

Meanwhile, in April 2012, Lieutenant Waterman of the Marion County Sheriff’s 

Department intercepted certain correspondence consisting of an envelope addressed to 
5

Smith’s mother and containing a letter to Cody and a smaller stamped envelope which

read on the back “Send this to Cody ASAP!” State’s Exhibit 27(C). The letter dated 

April 17, 2012, and addressed to Cody, stated in part:

Right on, I needed to know what went on to help me to let my lawyer know 

what your statement is going to be. You know what I need you to tell the 

lawyer when he does a deposition on you. Story: When the police got to 

the scene, he ask if you and Ty were hurt. You told him I was hurt and you 

were trying to help him to move and his body weight dropped on you. The 

medical people lifted Ty so you could get out. As you were scooting to the 

door the police officer pulled you aggressively out the truck and threw you

on the ground on the wet grass and mud. Some woman yelled, no no, 

another guy got out the truck, I think he was the driver. So the officer 

asked you whose truck is this, and you said my brother’s. The officer said 

what’s your brother’s name and you said, I don’t know why he slammed 

me on the ground and put me in cuffs when I hadn’t done anything. The 

officer said because he thought you were the driver. Then they searched 

you and found the Grey Goose bottle and the beer, all unopened. The 

officer said that he could lock you up for the alcohol. The officer didn’t 

give you a breath test because he knew you were not drunk, but he was 

trying to find a reason to lock anybody up. . . . Cody, you have to fill in the 

blanks after that. If they ask you in the deposition why you didn’t say that 

you were driver of the truck. The police were being aggressive and mean. 

They believed what they heard the woman say. It’s at that point once they 

started running my brother’s information that all the police officers could 

focus on. They had my brother’s driver’s license and they were running his 

license plates. My only focus was on getting to the hospital to make sure 

that my brother was okay. I don’t tell the police anything, anything 

because they lie and twist your story around. Also my brother told me not 

to say anything, but I can’t let him sit in jail or go to prison because of lies, 

when he was looking out for his brother by not saying anything and going 

to get help. Cody, make it do what it do, and be ready for they tricks they 

try to pull. . . . If they get in touch with Ty and get a statement he should be 

on the same thing. He was getting a ride from you. I was in the middle and 

hit my head on the rear view mirror.

Transcript at 302-304.

On June 3, 2013, a two-day jury trial began. At trial, Amiano identified the person 

that he saw exiting from the driver’s seat as the same person who was driving the truck 
6

when the crash occurred and the same person that the police apprehended. Amiano also 

testified that he did not observe the person that exited the truck climb over anyone to get 

out. He testified that the passenger in the middle seat was wearing a black jacket and red 

pants. On recross-examination, Amiano stated that it took him “[m]aybe 30 seconds” to 

go in his house, grab his cell phone, and walk out the front door. Id. at 81. Officer 

Emminger testified that the person in the middle of the truck stated that his brother was 

driving the truck, but when asked for his brother’s name, the person said, “I forgot.” Id.

at 111. 

Before taking a break, the court gave the following admonishment without 

objection:

Please remember the admonition I told you I’d be giving you. You may 

discuss the testimony you’ve heard among yourselves in the juryroom only 

and for the sole purpose of making sure you heard the same thing. Don’t 

decide whether you believe or don’t believe something. Don’t decide that 

something has been proven or not proven. Simply decide whether or not 

you’ve heard the same thing. Don’t form or express any opinion about this 

case until you’ve heard all the evidence, all the arguments and all of the 

instructions.

Id. at 125-126. At a later point before another break, the court stated without objection:

Please remember the admonition I’ve given you previously. You can 

discuss the testimony among yourselves for the purpose of making sure 

you’ve heard the same thing. Don’t form or express any opinion about 

what has been proven or not proven, who to believe or not to believe until 

you’ve heard all the evidence, all the argument, all the instructions.

Id. at 171-172. Before another recess, the court stated without objection: “You can 

discuss the testimony among yourselves to make sure you’ve all heard the same thing.” 

Id. at 196. The court later gave three similar admonishments prior to breaks. 
7

After the prosecutor indicated that the State had no further witnesses, Smith 

moved for a directed verdict, and the trial court denied the motion. Baker testified that he 

was 6’2” and weighed 240 pounds and was sitting by the door, that Cody was driving, 

and Smith was sitting in the middle. Cody testified that he was driving the truck at the 

time of the accident and that Smith was wearing a sparkly diamond encrusted jacket. On 

cross-examination, Cody testified that he had indicated in an earlier statement that Smith 

was wearing a brown coat. Smith testified that he was in the middle seat, Cody was 

driving, and that Baker was on the passenger side. Smith also testified that his head hit 

the rearview mirror and that he received injuries to his head as a result of the accident. 

Smith stated that he was between 6’1” and 6’2” and weighed between 220 and 230 

pounds and that he was able to crawl over Cody who he estimated to be 5’10” and 

between 170 and 180 pounds. 

During rebuttal, Indianapolis Metropolitan Police Officer Tracy Ryan testified that 

Cody was sitting in the center seat, was “wedged in there pretty good,” and “had to use 

both of his hands to pull himself from the middle seat to get out of the driver’s side 

door.” Id. at 276. Officer Ryan also testified that she recalled that Cody was wearing a 

red jacket but did not recall what color pants he was wearing. Indianapolis Metropolitan 

Police Detective Eric Snow testified as a rebuttal witness that he investigates hit and run 

accidents and is a reconstructionist or examines accidents to determine how they occur. 

Detective Snow took photographs of the scene and the vehicles and had the chance to 

fully observe the damage to the vehicles. The following exchange occurred during direct 

examination of Detective Snow:
8

Q. And officer were the injuries that Travis Smith described consistent 

with your examination of that scene, in your opinion?

A. In my opinion if he stated he was sitting in the center and he hit the 

rear view mirror it’s impossible.

Q. Why do you say that?

A. By the force of impact.

* * * * *

Q. So you’re saying as the individuals sit in that bucket seat . . .

A. Yeah, if he was sitting in the back bucket seat after the impact he 

would not come straight on to where the rear view mirror is. He 

would have hit his head over here somewhere.

Q. So what does that indicate to you where you see there does appear to 

be a rather significant impact in the center of that front windshield in 

that truck. Which individual do you believe would cause that 

impact?

A. That would be whoever was driving the vehicle.

Q. The person in the driver’s seat?

A. Yes.

Id. at 308-309. On surrebuttal, Smith testified that he wrote the letter to Cody “to get 

Cody to come forth and let them know what it was that really happened.” Id. at 313. 

During closing argument, the prosecutor stated, without objection, that Cody, 

Baker, and Smith were lying and that the jury could ignore their testimony. After closing 

argument and while the jury was deliberating, the court had a discussion with the 

attorneys and stated: “You are going to reach an agreement, but if he’s convicted of count 

1 he’ll get less than the full 30 years because he’ll admit to being a habitual offender. I 

want to take the guilty plea while the jury is still out.” Id. at 337-338. The court later 
9

stated: “Let me know if you reach an agreement and I can take the factual basis on 

whatever you agree to number 1.” Id. at 339. After the jury indicated that it had reached 

a verdict, the court asked the attorneys if they had reached a decision regarding the 

second phase of the trial and the following exchange occurred:

[Defense Counsel]: I have relayed the offers that the State has made on any 

potential enhancement compromise and he says if he is 

convicted of count 1 or count 2 or 3 that he is 

admitting – he is willing to admit that he does have the 

prior convictions. There are 3 prior convictions 

alleged.

THE COURT: There are only 2; 2 for the habitual and 1 for count 3. 

The State filed an amended information yesterday.

[Defense Counsel]: But he is admitting basically all 3 convictions. He is 

agreeing that those are accurate.

Id. at 352-353. Smith then admitted that he had the prior convictions alleged in the 

amended habitual offender information. The prosecutor then offered State’s Exhibits 14 

through 19 “just to be sure” and “[s]o there is no confusion.” Id. at 358. The court 

admitted State’s Exhibits 14 through 19 which consist of documents including charging 

informations and abstracts of judgment related to the prior convictions. The court then 

stated: “So if there is a conviction on count 1 we’ll find that the habitual offender 

enhancement is proven by admission.” Id. at 358-359. The parties then discussed the 

prior conviction related to Count III, and Smith admitted that he had such a conviction. 

The jury found Smith guilty of Count I, failure to stop after an accident resulting 

in serious bodily injury while intoxicated as a class B felony; Count II, operating a motor 

vehicle while intoxicated causing serious bodily injury as a class D felony; Count III, 

operating a motor vehicle with a BAC of .08 or more causing serious bodily injury as a 
10

class D felony; and Count IV, failure to stop after an accident resulting in damage to 

property other than a vehicle as a class B misdemeanor. 

At the beginning of the sentencing hearing, the court summarized the situation in 

part by stating “Mr. Smith was found guilty of all counts and admitted the enhancement 

that makes the D felonies, C felonies. Further, he admitted that he was an habitual 

offender, which satisfies Count VII.” Id. at 369. The prosecutor stated that Count I 

encompassed Counts II and III and their enhancements and moved to dismiss them, and 

the court granted the motion. 

The court sentenced Smith to fifteen years for Count I with five years suspended 

and enhanced the sentence by twenty years, and to a concurrent one year for Count IV for 

an aggregate sentence of thirty-five years with five years suspended.

DISCUSSION

I.

The first issue is whether the admission of hearsay evidence constituted 

fundamental error. We review the trial court’s ruling on the admission or exclusion of 

evidence for an abuse of discretion. Roche v. State, 690 N.E.2d 1115, 1134 (Ind. 1997), 

reh’g denied. We reverse only where the decision is clearly against the logic and effect 

of the facts and circumstances. Joyner v. State, 678 N.E.2d 386, 390 (Ind. 1997), reh’g

denied. Even if the trial court’s decision was an abuse of discretion, we will not reverse 

if the admission constituted harmless error. Fox v. State, 717 N.E.2d 957, 966 (Ind. Ct.

App. 1999), reh’g denied, trans. denied.
11

As Smith recognizes, he did not object to Officer Emminger’s testimony regarding 

what Cody stated at the scene. To avoid waiver, Smith attempts to invoke the 

fundamental error doctrine. Generally, failure to object to the admission of evidence at 

trial normally results in waiver and precludes appellate review unless its admission 

constitutes fundamental error. Brown v. State, 929 N.E.2d 204, 207 (Ind. 2010), reh’g

denied; Cutter v. State, 725 N.E.2d 401, 406 (Ind. 2000), reh’g denied. Fundamental 

error is an extremely narrow exception that allows a defendant to avoid waiver of an 

issue. Cooper v. State, 854 N.E.2d 831, 835 (Ind. 2006). It is error that makes “a fair 

trial impossible or constitute[s] clearly blatant violations of basic and elementary 

principles of due process . . . present[ing] an undeniable and substantial potential for 

harm.” Id. “This exception is available only in ‘egregious circumstances.’” Brown v. 

State, 929 N.E.2d 204, 207 (Ind. 2010) (quoting Brown v. State, 799 N.E.2d 1064, 1068 

(Ind. 2003)).

Smith argues that Cody’s statement recounted by Officer Emminger, specifically 

that Cody’s brother was the driver of the truck, was hearsay and should not have been 

admitted. Smith appears to argue that the admission of the statement was fundamental 

error because there was a great dispute as to whether it was he or Cody driving the truck, 

the reliability of Amiano’s perceptions of the crash and his memory were vigorously 

challenged during cross-examination, and the statement was tremendously prejudicial to 

Smith. The State argues that Cody’s statement was not inadmissible hearsay because it 

fell under the excited utterance exception and that even if the statement constituted 

inadmissible hearsay, any error in its admission was not fundamental error. 
12

Even assuming that Cody’s statement as testified to by Officer Emminger 

constituted inadmissible hearsay, we cannot say that fundamental error occurred. 

Amiano testified that he was eight to ten feet away from the pickup truck and that he was 

able to see inside the vehicle. Amiano also identified the person that he saw exiting the 

driver’s seat as the same person who was driving the truck when the crash occurred. 

Sergeant Simpson discovered Smith approximately three blocks from the scene of the 

collision wearing a jacket described by Amiano and with blood all over his face. Officer 

Ryan testified that Cody was sitting in the center seat, was “wedged in there pretty good,” 

and “had to use both of his hands to pull himself from the middle seat to get out of the 

driver’s side door.” Transcript at 276. Further, Detective Snow, a reconstructionist, 

testified that it would have been impossible for Smith to sustain his injuries if he had 

been sitting in the center seat. Based upon the evidence that Smith was the driver of the 

truck, the claimed error did not make a fair trial impossible, nor was its harm or potential 

harm substantial. Accordingly, we cannot say that reversal is warranted on this basis.

II.

The next issue is whether the prosecutor committed prosecutorial misconduct that 

resulted in fundamental error. In reviewing a properly preserved claim of prosecutorial 

misconduct, we determine: (1) whether the prosecutor engaged in misconduct, and if so, 

(2) whether the misconduct, under all of the circumstances, placed the defendant in a 

position of grave peril to which he should not have been subjected. Cooper, 854 N.E.2d 

at 835. Whether a prosecutor’s argument constitutes misconduct is measured by 

reference to case law and the Rules of Professional Conduct. Id. The gravity of peril is 
13

measured by the probable persuasive effect of the misconduct on the jury’s decision 

rather than the degree of impropriety of the conduct. Id.

When an improper argument is alleged to have been made, the correct procedure is 

to request the trial court to admonish the jury. Id. If the party is not satisfied with the 

admonishment, then he should move for mistrial. Id. Failure to request an 

admonishment or to move for mistrial results in waiver. Id. 

Where, as here, a claim of prosecutorial misconduct has not been properly 

preserved, our standard of review is different from that of a properly preserved claim. Id. 

More specifically, the defendant must establish not only the grounds for the misconduct, 

but also the additional grounds for fundamental error. Id.

Smith points to the following emphasized comments made by the prosecutor 

during closing argument:

You are going to be instructed by the Judge that under Indiana Law that 

your job as jurors when there is a conflict between sworn statements to 

decide who is telling the truth, who is not, who to believe and who not to 

believe. And you can absolutely ignore someone’s testimony.

* * * * *

Cody and [Baker’s] testimony you can ignore it. There is a conflict. You 

have the right as jurors to ignore it if you believe it does not hold truth, and 

it does not hold truth. It is [Smith’s] story to protect himself. It is 

[Smith’s] story that you get him out of this seat, and it’s a lie.

* * * * *

We know that the story given to you by the defense is wrong. That leaves us 

with Bradley Amiano, leaves us with a man who is taking out the trash after 

a run. . . . You heard him talking to 9-1-1. You have no reason not to 

believe that. It is not a story, it is the truth. And that truth makes [Smith]

guilty of this crime.
14

Transcript at 320, 323, 325 (emphases added). Smith also directs our attention to the 

following emphasized portions of the comments made by the prosecutor during rebuttal 

argument:

Travis Smith was driving, to be honest. He was seen in the driver’s seat. 

He was seen getting out of the driver’s seat. He was seen moments before 

and after the crash. By his own admission he was playing with the radio, 

ran a stop sign, plowed into a red Jeep Grand Cherokee and crashed and 

fractured the skull of a 1 1/2 year old child. So they had to change the truth 

to this story. Tweaked a little bit here, they had come from the liquor store 

and had gone to [Smith’s] wife’s house. They were going to his dad’s 

house. They just flipped who was driving. They want you to believe that 

Cody was driving, it’s not true. Cody, [Baker] and [Smith] are not 

believable. And in instruction number 10 that you got this morning it 

indicated in weighing the testimony to determine what or whom you will 

believe, you should use your own knowledge, experience and common 

sense gained from day to day living. The number of witnesses who 

testified to a particular fact, or the quantity of evidence on a particular point 

need not control your determination of the truth. Don’t believe them, they 

are lying to you. And ignore what they tell you. The law allows you, 

orders you to make that determination and ignore what they told you. And 

find the truth, that [Smith] operated that vehicle, caused the crash, injured 

the child and fled away because he knew he would be in trouble. That’s the 

truth, find the truth.

Id. at 334-335 (emphases added).

Smith argues that the prosecutor improperly commented on the truthfulness of 

Amiano and the lack of truthfulness of Smith, Baker, and Cody. In support, Smith cites 

Ind. Professional Conduct Rule 3.4(e), which states:

A lawyer shall not . . . in trial, allude to any matter that the lawyer does not 

reasonably believe is relevant or that will not be supported by admissible 

evidence, assert personal knowledge of facts in issue except when testifying 

as a witness, or state a personal opinion as to the justness of a cause, the 

credibility of a witness, the culpability of a civil litigant or the guilt or 

innocence of an accused . . . .
15

The State argues that the prosecutor’s comments regarding the truthfulness of Amiano 

and the lack of truthfulness of defense witnesses arose from the evidence and that at no 

time did the prosecutor insinuate in any way that he was in possession of superior 

knowledge. 

Smith next argues that the prosecutor misled the jury as to its duty in evaluating 

the evidence by indicating that it could ignore certain testimony. Smith points to 

Indiana’s Criminal Pattern Jury Instruction No. 1.17 which states in part:

You should not disregard the testimony of any witness without a reason and 

without careful consideration. If you find conflicting testimony, you may 

have to decide what testimony you believe and what testimony you do not 

believe. You may believe all of what a witness said, or only part of it, or 

none of it.

The State argues that the language used by the prosecutor “while perhaps inartful, 

did not mislead the jury into thinking they could ignore testimony for no reason.” 

Appellee’s Brief at 12. The State contends that the prosecutor was informing the jury 

that it had the authority to disregard or ignore testimony they found to be incredible. The 

State also points out that the jury was instructed on this issue. 

Smith also contends that the prosecutor improperly elicited the highly prejudicial 

hearsay of Cody’s statement during the direct examination of Officer Emminger and 

again points to Ind. Professional Conduct Rule 3.4(e). The State argues that Cody’s 

statement was an excited utterance and was admissible and that, even if the admission of 

the statement is deemed error, the prosecutor’s simple elicitation of that testimony falls 

well short of that necessary to constitute prosecutorial misconduct, let alone fundamental 

error. 
16

Finally, Smith contends that the cumulative effect of the prosecutor’s misconduct 

impacted his substantial rights and was not harmless. The State argues that none of the 

challenged acts by the prosecutor constitute misconduct at all, let alone fundamental 

error. 

To the extent that Smith challenges the prosecutor’s statements regarding 

Amiano’s truthfulness, the lack of truthfulness of Smith, Baker, and Cody, and that the 

jury could ignore certain testimony, we observe that the Indiana Supreme Court has held 

that a prosecutor does not necessarily engage in misconduct by characterizing a defendant 

as a liar. Cooper, 854 N.E.2d at 836. Rather, “a prosecutor may comment on the 

credibility of the witnesses as long as the assertions are based on reasons which arise 

from the evidence.” Id. 

In Hobson v. State, 675 N.E.2d 1090, 1095-1096 (Ind. 1996), the Indiana Supreme 

Court discussed a claim of fundamental error involving the prosecutor’s personal 

opinions as to the truthfulness of witnesses. Specifically, the “prosecutor gave personal 

opinions as to the truthfulness of witnesses” when the prosecutor stated to the jury during 

closing arguments, “I warned you that [the defendants] are liars.” 675 N.E.2d at 1095. 

The Court held that “[a] prosecutor, in final arguments, can ‘state and discuss the 

evidence and reasonable inferences derivable therefrom so long as there is no implication 

of personal knowledge that is independent of the evidence.’” Id. at 1096 (quoting 

Kappos v. State, 577 N.E.2d 974, 977 (Ind. Ct. App. 1991), trans. denied). The Court 

held that the prosecutor’s comments merely pointed out the incongruities in the 

testimony, concluded that someone must not be testifying truthfully, and invited the jury 
17

to determine who was telling the truth, an activity properly within a jury’s domain. Id. 

The Court concluded that no error occurred. Id. 

There was ample evidence indicating that Smith was the driver of the pickup 

truck. The prosecutor was permitted to argue that Smith, Cody, and Baker were not 

offering truthful testimony. While some comments may have been improper, the jury 

received instructions that it had the right to determine what had and what had not been 

proven and that it was the exclusive judge of the evidence, the credibility of the 

witnesses, and the weight to be given to the testimony. The court gave the following 

instruction: 

You should not disregard the testimony of any witness without a 

reason and without careful consideration. If you find conflicting testimony 

you may determine which of the witnesses you will believe and which of 

them you will disbelieve.

In weighing the testimony to determine what or whom you will 

believe, you should use your own knowledge, experience and common 

sense gained from day to day living. The number of witnesses who testify 

to a particular fact, or the quantity of evidence on a particular point need 

not control your determination of the truth. You should give the greatest 

weight to that evidence which convinces you most strongly of its 

truthfulness.

Appellant’s Appendix at 135. The court instructed the jury that it must determine the 

facts from a consideration of all the evidence, look to the instructions from the court for 

the law of the case, and find the verdict accordingly. The court also instructed the jury 

that comments or remarks made by counsel, including the opening and closing 

arguments, should not be considered as evidence. 

With respect to the prosecutor eliciting testimony from Officer Emminger 

regarding Cody’s statement that his brother was the driver of the pickup, we do not find 
18

either prosecutorial misconduct or fundamental error, and we cannot say that Smith has 

demonstrated fundamental error with respect to his individual claims or cumulatively.

III.

The next issue is whether the court’s admonishments that the jury could discuss 

the testimony it had heard for the purpose of making sure that each juror heard the same 

thing constituted fundamental error. Smith argues that the trial court’s repeated 

advisement to the jury that it should or could make sure each juror heard the same thing 

was improper and created a risk that the jury did not properly consider and evaluate the 

evidence in reaching its verdict. Smith contends that “[i]t is the responsibility of each 

juror to evaluate the evidence as he or she heard it, not to agree with another juror or 

jurors as to specifically what was stated or heard.” Appellant’s Brief at 17. He argues 

that there is a substantial possibility that the court’s advisement misled the jury as to its 

duty in evaluating the evidence and deprived him of a fair trial. 

The State points out that Smith did not object to any of the admonishments and 

contends that if error occurred, it served only to unduly limit the jury’s discussions, and 

that nothing in the court’s language required the jury to believe that if they heard 

something differently they heard incorrectly. 

Ind. Jury Rule 20(a) provides:

The court shall instruct the jury before opening statements by reading the 

appropriate instructions which shall include at least the following . . . (8) 

that jurors, including alternates, are permitted to discuss the evidence 

among themselves in the jury room during recesses from trial when all are 

present, as long as they reserve judgment about the outcome of the case 

until deliberations commence. The court shall admonish jurors not to 

discuss the case with anyone other than fellow jurors during the trial.
19

We conclude that the trial court’s repeated admonishment during the trial that the jury 

could discuss the testimony only for the sole purpose of making sure the jurors heard the 

same thing was improper. Nevertheless, to prevail on appeal, Smith must demonstrate 

fundamental error. 

The court gave the jury the following final instruction:

As jurors, it is your duty to consult with one another and to deliberate with 

a view toward reaching an agreement, if you can do so without 

compromising your individual judgment. Each of you must decide the case 

for yourself, but do so only after an impartial consideration of the evidence 

with your fellow jurors. In the course of your deliberations, do not hesitate 

to re-examine your own views and change your opinion if convinced it is 

erroneous. But do not surrender your honest belief or opinion as to the 

weight or effect of evidence solely because of the opinion of your fellow 

jurors, or for the mere purpose of returning a verdict.

Appellant’s Appendix at 154. Under the circumstances, we cannot say that Smith has 

demonstrated fundamental error.

IV.

The next issue is whether Smith knowingly, voluntarily, and intelligently waived 

his right to a jury trial on the habitual offender charge. He argues that at no point in the 

proceedings did he personally and affirmatively waive his right to have a jury decide 

whether he was an habitual offender. He concedes that he did not object at the habitual 

offender phase and cites Reynolds v. State, 703 N.E.2d 701 (Ind. Ct. App. 1999), for the 

proposition that fundamental error occurs when a defendant is denied a jury trial unless 

there is evidence of his knowing, voluntary and intelligent waiver of the right. 

The State concedes that the record does not include a formal advisement of 

Smith’s right to have a jury determine his status as an habitual offender or an explicit 
20

formal waiver of that right. However, the State argues that these omissions do not 

require reversal absent some showing of prejudice, and points to Smith’s admissions 

related to his prior convictions and the trial court’s questions to him. 

Both the United States Constitution1and the Indiana Constitution2 guarantee the 

right to trial by jury. Dixie v. State, 726 N.E.2d 257, 258 (Ind. 2000). A criminal 

defendant is presumed not to waive this right unless he affirmatively acts to do so. Id. A 

defendant may waive his right if he does so personally, intelligently, and voluntarily. Id. 

The right to trial by jury applies to habitual offender proceedings. Id. at 259; Ind. Code § 

35-50-2-8. “The defendant must express her personal desire to waive a jury trial and 

such a personal desire must be apparent from the court’s record, whether in the form of a 

written waiver or a colloquy in open court.” O’Connor v. State, 796 N.E.2d 1230, 1234

(Ind. Ct. App. 2003).

Ind. Code § 35-37-1-2 governs waiver of trial by jury and provides: “The 

defendant and prosecuting attorney, with the assent of the court, may submit the trial to 

the court. All other trials must be by jury.” In Kellems v. State, the Indiana Supreme 

held:

[W]e adhere to the general principle enunciated in [Doughty v. State, 470 

N.E.2d 69, 70 (Ind. 1984)]: Indiana Code Section 35-37-1-2 (2004), 

dictates that a knowing, voluntary, and intelligent waiver of the right to a 

jury trial requires assent to a bench trial “by defendant personally, reflected 

in the record before the trial begins either in writing or in open court. The 

record reflection must be direct and not merely implied. It must show the 

 

1 U.S. CONST. amend. VI.

2

IND. CONST. art. 1, § 13.
21

personal communication of the defendant to the court that he chooses to 

relinquish the right.”

849 N.E.2d 1110, 1113 (Ind. 2006).

This court has previously held that “[i]t is fundamental error to deny a defendant a 

jury trial unless there is evidence of the defendant’s knowing, voluntary and intelligent 

waiver of the right.” Reynolds v. State, 703 N.E.2d 701, 704 (Ind. Ct. App. 1999). 

Further, this court addressed a similar situation in O’Connor v. State, in which the 

defendant waived her right to a jury trial and the State subsequently filed an information 

alleging her to be an habitual offender. 796 N.E.2d at 1232. A bench trial was conducted 

and the court found the defendant guilty as charged. Id. During the habitual offender 

phase, the defendant stipulated to the evidence which the State presented in support of the 

habitual offender information. Id. The court then found the defendant to be an habitual 

offender. Id. at 1232-1233. On appeal, the defendant argued that she did not knowingly, 

voluntarily, and intelligently waive her right to a jury trial on the underlying charges and 

as to the habitual offender determination. Id. at 1232. He held that the defendant had 

waived her right to a jury trial on the underlying charges, but that with respect to the 

habitual offender information which had not been filed at the time the defendant waived 

her right to a jury trial, the defendant was never advised of her right to a jury trial as to 

the habitual offender determination and that at no time did she waive her right to such. 

Id. at 1234-1235. We reversed the trial court’s habitual offender determination, vacated

the sentence imposed thereon, and remanded to the trial court. Id. 

While Smith admitted to the convictions corresponding to those listed in the 

habitual offender allegation, the defendant in O’Connor likewise stipulated to the 
22

evidence in support of the habitual offender information, and we did not find such fact to 

be determinative of the outcome. Based upon O’Connor and the record, we vacate the 

habitual offender enhancement and remand for proceedings consistent with this opinion. 

See O’Connor, 796 N.E.2d at 1232-1235; see also Kellems, 849 N.E.2d at 1114 (holding 

that the trial court’s failure to secure a waiver from the defendant personally and to 

ensure that the waiver was reflected in the record necessitated granting the defendant a 

new trial); Patton v. State, 495 N.E.2d 534, 535 (Ind. 1986) (observing that there was 

nothing in the record to indicate that the defendant personally waived his right to a jury 

trial and that, while the defendant did not object to going to trial without a jury, the right 

to a trial by jury is fundamental to the American scheme of justice, and holding that the 

Court had no choice but to reverse and remand the case to the trial court either for a trial 

by jury or for an express waiver).

We also observe that the trial court sentenced Smith to one year for Count IV, 

failure to stop after an accident resulting in damage to property other than a vehicle as a 

class B misdemeanor. However, Ind. Code § 35-50-3-3 provides that “[a] person who

commits a Class B misdemeanor shall be imprisoned for a fixed term of not more than 

one hundred eighty (180) days . . . .” Accordingly, we also remand to the trial court to 

sentence Smith within the limit expressed in Ind. Code § 35-50-3-3. See Morgan v. 

State, 417 N.E.2d 1154, 1156-1157 (Ind. Ct. App. 1981) (noting sua sponte that the 

defendant received an improper sentence where the defendant was sentenced to one year 

imprisonment for a class B misdemeanor and holding that the proper sentence of 
23

imprisonment should have been for a term not more than 180 days pursuant to Ind. Code 

§ 35-50-3-3).

For the foregoing reasons, we affirm Smith’s convictions, vacate the habitual 

offender enhancement, and remand the case for proceedings consistent with this opinion.

Affirmed in part, reversed in part, and remanded.

ROBB, J., and BARNES, J., concur.